Tucker v. Brown
| Decision Date | 08 June 1944 |
| Docket Number | 29087. |
| Citation | 150 P.2d 604,20 Wn.2d 740 |
| Court | Washington Supreme Court |
| Parties | TUCKER v. BROWN et al. In re BROWN'S ESTATE. GUARANTY TRUST CO. v. BROWN et al. |
Rehearing Denied Aug. 3, 1944.
Suit in equity by Willmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased, against Sadie R. Brown and her son, and against the Guaranty Trust Company, individually and as administrator de bonis non with the will annexed of the estate of Reese B. Brown, deceased to establish a trust and obtain an accounting, wherein plaintiff Tucker filed a supplemental petition making D. H Bonsted and another additional defendants, and the trust company filed a cross-complaint. This suit was consolidated with two other cases: (1) Probate proceedings in the matter of the estate of Reese B. Brown, deceased, wherein Wilmon Tucker filed objections to the final account; and (2) an action by the trust company, individually and as administrator, against Sadie R. Brown and others to set aside certain transfers of property by its decedent, Reese B Brown. From the decree, Wilmon Tucker, the Guaranty Trust Company, and the attorneys Bonsted & Nichoson and F. C Palmer, Jr., appeal. Wilmon Tucker having died, George H. Rummens was appointed in his stead.
Affirmed as modified, and case remanded with instructions.
Appeal from Superior Court, Yakima County; James B. Kinne, judge.
Cheney & Hutcheson, of Yakima, for Guaranty Trust Co.
Bonsted & Nichoson and F. C. Palmer, Jr., and I. J. Bounds, all of Yakima, for Bonsted & Nichoson.
Rummers & Griffin and Allen, Hilen, Froude & DeGarmo, all of Seattle, and P.J. Gallagher, of Ontario, Or., for Wilmon Tucker.
This case involves an accounting of funds and property belonging to the estate of Sarah E. Smith, deceased, which have been in the possession of the estate of Reese B. Brown, deceased.
Three cases involving the estate have been consolidated, and are Before us for review.
(1) A suit in equity instituted October 23, 1934, by Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, against Sadie R. Brown, widow of Reese B. Brown, her son, Fred, and Guaranty Trust Company, as administrator de bonis non with the will annexed of the estate of Resse B. Brown, deceased. The purpose of the suit was to recover certain funds and personal property claimed to have been owned by Sarah E. Smith and held by Brown in trust for her and for an accounting. The trust feature was decided in Tucker v. Brown, 199 Wash. 320, 92 P.2d 221. The present appeal involves the accounting.
(2) The probate proceedings of the estate of Reese B. Brown involved in the final account to which Tucker had filed objections.
(3) An action by Guaranty Trust Company, as administrator of the Brown estate, against Fred R. Brown to set aside transfers of property given without consideration by Reese B. Brown at a time when he was insolvent.
In addition to these cases, we have Before us the objections of Bonsted & Nichoson and F. C. Palmer, Jr., attorneys for appellant, relative to the amount of attorneys' fees allowed by the trial court.
The many issues and questions involved in this litigation are sufficient to make several large lawsuits.
Mr. Tucker died just prior to the argument in this court, and Mr. George H. Rummens, senior counsel for Tucker, was appointed in his stead.
Litigation involving the Smith and Brown estates had been considered by this court in Tucker v. Brown, supra, In re Brown, 6 Wash.2d 215, 101 P.2d 1003, 107 P.2d 1104, and In re Brown's Estate, 7 Wash.2d 717, 110 P.2d 867.
Most of the incidents relative to the activities of Brown and Mrs. Smith are mentioned in Tucker v. Brown, supra. However, it will be necessary to set out many additional facts in the course of this opinion.
Mrs. Smith died July 24, 1932, in a hotel in Montreal, Canada, where she had been taken by Brown in an endeavor to elude the United States marshal who had a warrant of arrest for her issued as a result of a Federal indictment charging a violation of the revenue acts.
Brown died as the result of an accident January 24, 1934.
After the remittitur went down in Tucker v. Brown, supra, the trial court, September 13, 1939, entered its decree in accordance with the mandate of this court. That decree read as follows:
'It is hereby considered, adjudged and decreed as follows:
'1. The judgment of dismissal entered herein on March 26, 1938, and the judgment for costs to the defendants in said judgment is hereby in all respects vacated, cancelled and set aside.
'2. That upon the trial of this cause the defendants herein admitted the receipt and possession by Reese B. Brown of all of the property hereinafter described, alleging and contending possession thereof was justified by virtue of an alleged gift of all of said property from Sarah E. Smith to Reese B. Brown during their lifetime; that pursuant to the judgment of the Supreme Court of the State of Washington it is hereby adjudged and decreed that Sarah E. Smith did not in her lifetime make any gift of any property to Reese B. Brown or Sadie R. Brown or Fred R. Brown, and that plaintiff's action against said defendants is not barred by any statute of limitations.
'3. That in 1929 and 1930 Reese B. Brown received from Sarah E. Smith, as trustee for her under an express trust substantially all of the property then owned by her (a partial list of which is set forth in paragraph 4 hereof) and that during the life of Sarah E. Smith said property received by Reese B. Brown as trustee was not returned to said Sarah E. Smith, and no accounting of said trust was made to her, and no accounting has been made by Reese B. Brown or by the administratrix, administrator, executrix or administrator de bonis non with the will annexed of his estate since the death of Sarah E. Smith.
'4. That among other property the following property of Sarah E. Smith was received by Reese B. Brown in 1929 and 1930, as trustee for Sarah E. Smith, and for which the plaintiff is entitled to an accounting against the defendants herein:
'$203,000.00 First Liberty Loan Bonds
'10,000.00 Minneapolis-Trust Joint Stock Land Bank
'5,000.00 Pacific Coast Joint Stock Land Bank, Portland
'20,000.00 Central Illinois Joint Stock Land Bank, Greenville
'20,000.00 California Joint Stock Land Bank, San Francisco
'20,000.00 Union Joint Stock Land Bank, Detroit
'10,000.00 Iowa Joint Stock Land Bank, Sioux City
'10,000.00 Southern Minnesota Joint Stock Land Bank, Redwood Falls
'10,000.00 LaFayette Joint Stock Land Bank
'10,000.00 Des Moines Joint Stock Land Bank
'10,000.00 First Trust Joint Stock Land Bank, Chicago
'10,000.00 County of Ramsey, Minnesota, Road & Bridge
'10,000.00 South Park Commissioners, Chicago
'1,000.00 North Shore Park District, Chicago
'20,000.00 Little River Drainage District, Missouri
'3,000.00 County of Pulaski
'1,000.00 State of Illinois Highway Bond
'2,000.00 State of Illinois Service Compensation Bonds
'2,000.00 St. Clair County, Illinois Road Bonds
'20,000.00 Yakima Special Water Works
'10,000.00 Public Service Company of Northern Illinois
'4,000.00 Metropolitan Building Company
'43,000.00 Dominion of Canada War Loan
'3,000.00 County of Bonner, Idaho, Road and Bridge
'Together with all interest coupons attached thereto.
'100 shares preferred stock Georgia Hotel Company, Ltd.
'20 shares ordinary Georgia Hotel Company, Ltd.
'$545,384.42 withdrawn from Metropolitan National Bank February 14, 1930
'All household furniture, rugs, etc. owned by Sarah E. Smith
'Lots 1, 2 and 3, Block 277, Seattle Tide Lands, King County, Washington
'All of the lots owned by Sarah E. Smith in Bellingham, Wahtcom County, Washington
'And in addition thereto during the existence of the said trust relationship between Reese B. Brown and Sarah E. Smith, and while the confidential and fiduciary relationship existed between them, Sarah E. Smith entrusted Reese B. Brown with $485,000.00 in money, which has not been repaid, and as to all of which the plaintiffs are entitled to an accounting from the defendants.
'5. That an accounting between the parties hereto with respect of all of the property owned by said Sarah E. Smith and received by said defendants or any of them, or by said Reese B. Brown, be had at a trial in this cause at such time as the matter may be regularly assigned for trial by the above entitled court. At said trial the evidence heretofore introduced in this action shall be considered and may be supplemented by such evidence as the parties hereto shall produce. This nature and extent of plaintiff's claim against the defendants and the property in their possession because of the fact that said trust property has not been fully accounted for and returned to the plaintiff, shall be determined at the trial to be had as herein provided.
December 14, 1939, respondent filed a supplemental petition relative to the return of the trust property. That petition, in which D. H. Bonsted and A. J. Falknor were made additional defendants, contained many allegations relative to the trust funds and the actions of the trust company, the Browns and the attorneys. The pertinent portions of the allegations contained in that supplemental petition are as follows:
'That all matters and things herein set forth are supplemental of, and in addition to, all the matters alleged in plaintiff's Second Amended Complaint, which is on file herein, a copy of which is in the possession of each of the additional defendants.
'That the matters herein set forth are not pleaded for the purpose of changing or altering the nature of plaintiff's cause of action or the remedy therein sought, but are pleaded solely...
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